"It is a very careful process: lawyers must notify members of their legal rights and they also need to notify them of the benefits that are available.
Under the law in the US and Canada, the most important part of notifying class members is not about getting them the benefits, oddly enough. The rules of notice are about ensuring that their rights are protected and typically that they are able to opt out before they are bound by the judgment of the class action.Also, it is a member's right to object to what is being decided -- if a settlement is being reached. The objection may be rejected by the trial judge; if so, the member can appeal, but this process can hold up payments for all class members.
Here is a very common situation: a class action is settled; plaintiffs receive benefits and in exchange the defendant gets closure. So it is important for both parties to get good notice out. Lawyers for the plaintiffs have a duty and obligation to look at notice and find out how to reach a high percentage of these members -- to find as many people as possible. Sometimes this can be difficult because a class action lawsuit can include millions of people, spread out across the country.
For example, I gave notice on a Metropolitan Life insurance case. This class action involved race-based pricing where class members were policy holders but also the heirs and descendants of holders dating back from 1901 and up until the 1970s. African-Americans and other non-Caucasians were the target of a sales practice whereby Metropolitan Life and other insurance companies sold burial insurance. Like many insurance companies, they allegedly went to lower income neighborhoods, collected a dime a week from people. There was a settlement and we had to reach people who may have had no idea that their ancestor was covered. Records were dusty old boxes in warehouses.
In cases like this, we look at sources of data -- demographics -- and we pull strategies from the advertising industry that have been used for decades. For example, we look at what types of people read certain publications, if they watch TV. We then put together a program that will reach a high percentage of that demographic group, and thereby effectively reach the class.
A big problem with legal notification is the tradition of legal notices -- these antiquated methods get in the way of communication. Who reads the fine print in the back of newspapers? You have to create notices that are attention-getting as well as simple and easy to understand.
The Process
It is the lawyers' responsibility -- those who bring the case -- to give notice when a class is certified. But often it is certified for settlement purposes. The first notice that goes out is often about the settlement and the lawyers for the class have negotiated that the company paying the settlement will also pay for the notice.
Then the court has to authorize the notice. Notices come from the court, and the lawyers are charged with carrying that out. If there is no settlement, the lawyers for the class have to pay for it.
The Plaintiff lawyers should be concerned about getting very good notice. Defendant lawyers also want strong notice. Why?
Collateral Attack
Because they want closure. They don't want members coming back to them in some other case saying they didn't get notice. This is called a collateral attack. Months, or even years from now, Jane Doe decides that she is upset about a certain product and contacts a lawyer. The lawyer says 'Sorry, you were already included in the settlement even though you didn't get any benefits.' Jane Doe tells her lawyer that she never got notice. If a court allows Jane Doe to bring her own lawsuit anyway, she has opened the door to another class action.
How Notice is Given
I am hired by both sides -- by the plaintiff or the defendant, or both. Increasingly, notice is moving into the modern age: the more information that is brought to courts about good communication, the more important notice is becoming and the less able anyone is to have these old-fashioned notices.
The Internet is a critical tool in every notification. It makes available notices to people all over the world -- notice is now expected to be online. If you have heard something about a lawsuit, you expect to search and find documents online. We want a class member to get quick access to notices, right from the court.
We set up case websites with easy-to-find domain names, such as the case with the Italian milk company Parmalat (www.parmalatsettlement.com). That case website is in seven languages. We make sure the website ranks high in the Google search engine. As well, class members can register and become identified so they can receive notices in the future or fill out a claim form directly online.
Email notice is a question that often gets raised. The defendant may have a large database but is it effective? You have to be careful due to so much spam and junk mail. The notice could get discarded, eliminated by a spam filter. There is no guarantee and no way of knowing if it was effectively received via Email, so we often use 'snail mail'.
Every case is different -- the obligation under federal rules is to provide the best notice practicable. There is room for creativity but we have to choose the best method.
There are a growing number of sites that have prominence on the Internet, such as LawyersandSettlements.com, so class members are easily finding these well-established websites. These sites are very useful to give an alert and to give notice of settlements or notices. We will ensure that LawyersandSettlements.com receives announcements about our notice cases as they arise.
Contact
Todd B. Hilsee
Hilsoft Notifications
215-721-2120 ext. 14
215-721-2120 ext. 14
www.hilsoft.com
Email: hilsee@hilsoft.com
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